INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT OF THE MARSICO GROWTH FUND OF THE MARSICO INVESTMENT FUND
Exhibit
(d)(2)
OF
THE XXXXXXX
INVESTMENT
FUND
AGREEMENT,
made the 14th
day of December
2007, between The Xxxxxxx
Investment Fund (the “Trust”), on behalf
of the Xxxxxxx
Growth Fund (the “Fund”), and
Xxxxxxx
Capital Management, LLC
(“MCM”),
a Delaware limited liability
company.
WHEREAS,
the Trust is a Delaware business trust authorized to issue shares in series
and
is registered as an open-end management investment company under the Investment
Company Act of 1940, as amended (the “1940
Act”), and the Fund is a
series of the Trust;
WHEREAS,MCM
is registered as an investment adviser under
the Investment Advisers Act of 1940, as amended (“Advisers Act”);
and
WHEREAS,
the Trust wishes to retain MCM
to render
investment management services to the Fund, and MCM
is
willing to furnish such services to the Fund;
NOW
THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed between the Trust and MCM
as
follows:
1.
Appointment
The
Trust hereby appoints MCM
to act
as investment adviser and manager of the Fund for the periods and on the terms
set forth herein. MCM
accepts the appointment and agrees to furnish
the services set forth herein for the compensation provided
herein.
2.
Services
As Investment Adviser
Subject
to the general supervision and direction
of the Board of Trustees of the Trust, MCM
will (a) manage the Fund in
accordance with the Fund’s investment objectives and policies as stated in the
Fund’s Prospectus and the Statement of Additional Information filed with the
Securities and Exchange Commission, as they may be amended from time to time;
(b) make investment decisions for the Fund; (c)
place purchase and sale
orders on behalf of the Fund; and (d)
employ portfolio
managers and securities analysts to provide research services to the Fund.
In
providing those services, MCM
will provide the Fund with ongoing research,
analysis, advice, and judgments regarding individual investments, general
economic conditions and trends and long-range investment policy. In addition,
MCM
will furnish the Fund with whatever
statistical information the Fund may reasonably request with respect to the
securities that the Fund may hold or contemplate
purchasing.
3.
Services
As Manager
Subject
to the general supervision and direction
of the Board of Trustees of the Trust, MCM
will (a) assist in
supervising and managing all aspects of the Fund’s operations; (b) maintain such
books and records as an adviser of the Fund may be required to maintain by
applicable federal or state law, and assist as appropriate in the
maintenance of the
Fund’s
own books and records by the
Fund’s
independent administrator and other third parties approved by the Trust;
(c)
supply the Fund with office facilities, data
processing services, clerical, accounting and bookkeeping services, internal
auditing and internal legal services, internal executive and management
services, and stationery
and office supplies, with
the aid
of other service providers including the Fund’s independent
administrator; (d)
prepare, file, and arrange for the
distribution of proxy materials and periodic reports to the shareholders of
the
Fund as required by applicable law, or supervise, as the case may be, the
preparation, filing, and distribution of proxy materials by third parties including
the
Fund’s independent administrator to the shareholders of the Fund as
required by applicable law; (e)
prepare or supervise
the preparation by third parties approved by the Trust including
the
Fund’s independent administrator of all federal, state, and local tax
returns and reports of the Fund required by applicable law; (f)
prepare and arrange for the filing of such
registration statements and other documents as the Securities and Exchange
Commission and other federal and state regulatory authorities may require by
applicable law, with
the aid
of other service providers including the Fund’s independent
administrator; (g)
render to the Board of Trustees of the Trust
such periodic and special reports respecting the Fund as the Trustees may
reasonably request; and (h)
make available its
officers and employees to the Board of Trustees and officers of the Trust for
consultation and discussions regarding the management of the
Fund.
4.
Performance
Of Duties By MCM
MCM
further
agrees that, in performing its duties set forth in Sections 2 and 3 above,
and
elsewhere hereunder, it will:
(a)
comply with the 1940 Act and all rules and regulations thereunder, the Advisers
Act, the Internal Revenue Code of 1986, as amended (the “Code”) and all other
applicable federal and state laws and regulations, and with any applicable
procedures adopted by the Trustees;
(b)
use reasonable efforts to manage the Fund so that it will qualify, and continue
to qualify, as a regulated investment company under Subchapter
M
of the Code and regulations issued
thereunder;
(c)
maintain books and records with respect to the Fund’s securities transactions,
render to the Board of Trustees of the Trust such periodic and special
reports as the Board may reasonably request, and keep the Trustees informed
of
developments materially affecting the Fund’s portfolio;
(d)
make available to the Trust, promptly upon request, such copies of its
investment records and ledgers with respect to the Fund as may be required
to
assist the Trust in its compliance with applicable laws and regulations, and
furnish
the
Trustees with such periodic and special reports regarding the Fund as they
may
reasonably request;
(e)
immediately notify the Trust in the event that MCM
or any
of its affiliates: (1) becomes aware that it is subject to a statutory
disqualification that prevents MCM
from serving as investment
adviser or manager pursuant to this Agreement; or (2) becomes aware that it
is
the subject of an administrative proceeding or enforcement action by the
Securities and Exchange Commission or other regulatory authority. MCM
further
agrees to notify the Trust immediately of any material fact known to
MCM
respecting or relating to MCM
that is not
contained
in the Trust’s Registration Statement regarding the Fund, or any amendment or
supplement thereto, but that is required to be disclosed therein, and of any
statement contained therein that becomes untrue in any material
respect.
MCM,
at its
discretion, may enter into contracts with third parties for the performance
of
the services to be provided by it under this Agreement.
5.
Documents
The
Fund has delivered properly certified or
authenticated copies of each of the following documents to MCM
and
will
deliver
to it all future
amendments and supplements
thereto, if
any:
(a)
certified resolution of the Board of Trustees of the Trust authorizing the
appointment of MCM
and approving the general form of this
Agreement;
(b)
the Registration Statement as filed with the Securities and Exchange Commission
and any amendments thereto; and
(c)
exhibits, powers of attorneys, certificates and any and all other documents
relating to or filed in connection with the Registration Statement described
above.
6.
Brokerage
In
selecting brokers or dealers to execute
transactions on behalf of the Fund, MCM
will use its best efforts to
seek the best overall terms available. In assessing the best overall terms
available for any Fund transaction, MCM
will consider all factors it
deems relevant, including, but not limited to, the breadth
of the
market in the security, the price of the security, the financial condition
and
execution capability of the broker or dealer and the reasonableness of the
commission, if any, for the specific transaction and on a continuing basis.
In
selecting brokers or dealers to execute a particular transaction, and in
evaluating the best overall terms available, MCM
is
authorized to
consider the brokerage and research services (as those terms are defined in
Section 28(e)
of
the Securities Exchange Act of 1934, as amended (the “1934
Act”))
provided
to the Fund and/or other accounts over which MCM
or
its
affiliates exercise investment discretion. In accordance with Section
11(a)
of
the 1934 Act and Rule 11a2-2(T)
thereunder,
and
subject to any other applicable laws and regulations, MCM
and
its
affiliates are authorized to effect portfolio transactions for the Fund as
agent
and to retain usual and customary brokerage commissions on such
transactions.
7.
Records
MCM
agrees to maintain and to preserve for the
periods prescribed under the 1940 Act any such records as are required to be
maintained by MCM
with respect to the Fund by the 1940 Act.
MCM
further agrees that all records which it
maintains for the Fund are the property of the Fund and it will promptly
surrender any of such records upon request, provided
that
MCM may maintain a copy for its own records.
8.
Standard
Of Care
MCM
shall
exercise its best judgment in rendering the services under this Agreement.
MCM
shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Fund or the Fund’s
shareholders in connection with the matters to which this Agreement relates,
provided that nothing herein shall be deemed to protect or purport to protect
MCM
against any liability to the Fund or to its
shareholders to which MCM
would otherwise be
subject by reason
of
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of MCM’s
reckless
disregard of its obligations and duties under this Agreement. As used in this
Section 8, the term “MCM”
shall
include
any officers, directors, employees, or other affiliates of MCM
performing
services with respect to the Fund.
9.
Compensation
In
consideration of the services rendered
pursuant to this Agreement, the Fund will pay MCM
a fee at an annual rate equal
to 0.85%
per year
of average daily net assets up to $3 billion in the Fund, and 0.75% per year
of
average daily net assets exceeding $3 billion in the Fund. This fee shall
be computed and accrued daily and payable monthly. For the purpose of
determining fees payable to MCM,
the value of the Fund’s average daily net
assets shall be
computed at the times
and in
the manner specified in the Fund’s Prospectus or Statement of Additional
Information.
10.
Expenses
MCM
will
bear all expenses in connection with the performance of its services under
this
Agreement. The Fund will bear certain other expenses to be incurred in its
operation, including: taxes, interest, brokerage fees and commissions; fees
and
expenses of Trustees of the Trust who are not officers, directors, or employees
of MCM;
Securities and Exchange Commission fees and
state blue sky qualification fees; charges of custodians and transfer and
dividend disbursing agents and
the
independent administrator; the Fund’s proportionate share of insurance
premiums; outside auditing and legal expenses; costs of membership in any
industry trade groups; costs of maintenance of the Fund’s existence; costs
attributable to investor services, including, without limitation, telephone
and
personnel expenses; charges of independent pricing services; costs of preparing
and printing prospectuses and statements of additional information for
regulatory purposes and for distribution to existing shareholders; costs of
shareholders’ reports and meetings of the shareholders of the Fund and of the
officers or Board of Trustees of the Trust; and any extraordinary
expenses. In addition, the Fund will pay distribution fees pursuant
to a Distribution Plan adopted under Rule 12b-1
under the 1940
Act.
11.
Services
To Other Companies Or Accounts
The
investment advisory and administrative
services provided by MCM
to the Fund under this Agreement are not to
be deemed exclusive, and MCM,
or any affiliate thereof, shall be free to
render similar services to other investment companies and other clients (whether
or not their investment objectives and policies are similar to those of the
Fund) and to engage in other activities, so long as its services hereunder
are
not impaired thereby.
12.
Reimbursement
Of Organization Expenses
The
Trust hereby
agrees to reimburse MCM
for
the
organization expenses of, and the expenses incurred in connection with, the
initial offering of the shares of the Fund.
13.
Duration
And Termination
This
Agreement shall become effective on December
14, 2007 and shall continue in effect, unless sooner terminated as provided
herein, for
two years
from such date, and shall continue from year to year thereafter, provided
each continuance is specifically
approved at least annually by (i)
the
vote of
a majority
of the Board of Trustees of the Trust or (ii) a vote of a “majority” (as defined
in the 0000 Xxx) of the Fund’s outstanding voting securities, provided that in
either event the continuance is also approved by a majority of the Board of
Trustees who are not “interested persons” (as defined in the 0000 Xxx) of any
party to this Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval. This Agreement is terminable, without
penalty, on sixty (60) days’ written notice by the Board of Trustees of the
Trust or by vote of holders of a majority of the Fund’s shares or upon ninety
(90) days’ written notice by MCM.
This
Agreement
will also terminate automatically in the event of its “assignment” (as defined
in the 1940 Act).
14.
Amendment
No
provision of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, and no amendment of this Agreement shall be effective
until approved by an affirmative vote of (i)
a majority of the
outstanding voting securities of the Fund, and (ii) a majority of the Trustees
of the Trust, including a majority of Trustees who are not interested persons
of
any party to this Agreement, cast in person at a meeting called for the purpose
of voting on such approval, if such approval is required by applicable
law.
15.
Use
Of The Name “Marsico.”
Xxxxxxx
Capital Management, LLC
has consented to and granted a non-exclusive
license for the use by the Trust and by each Series thereof to the phrase
“Xxxxxxx
Capital” or the identifying word
“Marsico”
in
the name of the Trust and of each
Series or any logo or symbol authorized by Xxxxxxx
Capital. Such consent is
conditioned upon the Trust’s employment of Xxxxxxx
Capital or its affiliates
as investment adviser to the Trust and to each Series. As between Xxxxxxx
Capital and the Trust, Xxxxxxx
Capital shall control the use of such
name insofar as such name contains the phrase “Xxxxxxx
Capital” or the identifying word “Marsico.”
Marsico
may
from time to time use the phrase “Xxxxxxx
Capital” or the
identifying word “Marsico”
in
other connections and for other
purposes, including without limitation in the names of other investment
companies, corporations or businesses that it may manage, advise, sponsor or
own
or in which it may have a financial interest. Xxxxxxx
Capital may require the Trust or any Series to cease using the phrase
“Xxxxxxx
Capital” or the identifying word
“Marsico”
in
the name of the Trust or any Series
or any logo or symbol authorized by Xxxxxxx
Capital if the Trust or
Series ceases to employ Xxxxxxx
Capital or an affiliate thereof as
investment adviser.
16.
Miscellaneous
(a)
This Agreement constitutes the full and complete agreement of the parties hereto
with respect to the subject matter hereof.
(c)
This
Agreement may be executed in several counterparts, all of which together shall
for all purposes constitute one Agreement, binding on all the
parties.
(d)
This
Agreement and the rights and obligations of the parties hereunder shall be
governed by, and interpreted, construed and enforced in accordance with the
laws
of the State of Delaware.
(f)
Notices
of
any kind to be given to MCM
by
the Trust
shall be in writing and shall be duly given it mailed or delivered to
MCM
at
1200
17thStreet,
Suite
1600,
Xxxxxx, Xxxxxxxx 00000, Attn: Xxx
Xxxxxx,
or
at such other address or to such individual as shall be specified by
MCM
to
the Trust.
Notices
of
any kind to be given
to
the Trust by MCM
shall
be in
writing and shall be duly given if mailed or delivered to 0000
00xx
Xxxxxx,
Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000, Attn: Xxxxxxxxxxx X. Xxxxxxx,
or
at such other address or to such individual as shall be specified by the Trust
to MCM.
IN
WITNESS WHEREOF,the
parties
hereto have caused this instrument to be executed by their officers designated
below effective as of the day and year first above.
THE
XXXXXXX
INVESTMENT FUND on Behalf of the Xxxxxxx Focus Fund
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Vice
President and Secretary
XXXXXXX
CAPITAL
MANAGEMENT, LLC
By: /s/
Xxxxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxxxx
X. Xxxxxxx
Title: President
